Ramaswami, J.

( 1. ) This case has a long and complicated history; but the question posed for decision in this appeal liea within a short compass. The appellant brought the suit for a declaration of title, for possession and mesne profits with respect to 1/9th share of certain villages which belonged to her parents Fazl Imam and Bibi Zohra, The respondent who was her eldest brother admitted her claim. The other defendants effected a compromise with the appellant which was recorded by the Court. On 9th February 1926 the appellant obtained a decree for possession of her share and for mesne profits. It is not necessary to trace in detail the further stages of the litigitions. On 28th March 1934, the plaintiff filed an application for ascertainment of mesne profits from the respondent with respect to her share according to the preliminary decree. Mr. Bagchi who was the Subordinate Judge at the time issued notice to the parties, recorded evidence of witnesses and on 8th March 1939 adjudicated the quantum of mesne profits. The last paragraph of his order states :

"I would therefore allow mesne profits for the period of claim at Rs. 652 per year according to the previous finding (vide Ex. 1). Interest will be allowed at 6 per cant. per annum from the end of each year of claim up to date. The office will calculate the amount of court-fee payable by the plaintiff and no decree will be prepared till the same is paid. Pleaders fee at 5 per cent. is allowed on the amount of mesne profits decreed. The plaintiff will also get the costs of this application proportionate to her success."

( 2. ) On 21st April 1939, the appellant was informed that she ought to pay Rs. 292-8-0 being ascertained amount of court-fee. The appellant apparently took no action but on 13th March 1945 after a lapse of about six years the appellant paid the requisite amount of court-fee and asked that a final decree for mesne profits should be prepared. The respondent objected that the execution of the decree was time barred and that the decree cannot be revived by payment of court-fee after a lapse of more than three years. Mr. S.K. Prasad, Subordinate Judge, upheld the objection of the respondent holding that the final adjudication between the parties regarding the amount of mesne profits was given on 8th March 1939, which date must therefore be taken to be the date of the decree; and the question of court-fee payable was a mere matter of calculation and the Court had nothing further to adjudicate in order to determine the amount of court-fee. The Subordinate Judge therefore refused to prepare another final decree.

( 3. ) In support of this appeal, Dr. Qazi Nazrul Hassan addressed the argument that on 8th March 1939 the decree was passed on condition that the necessary court fee was deposited, that limitation would run from the date when proper decree was drawn after the amount of court-fee was paid. Learned counsel submitted that the Subordinate Judge ought to have drawn a fresh decree on the date the necessary court-fee was paid.

( 4. ) In my opinion, this argument is untenable. In this case, there can be no doubt that final adjudication between the parties regarding the amount of mesne profits wag given on 8th March 1939. That date must therefore be taken to be the date of the final decree. Learned counsel for the appellant laid stress on the last portion of the order of 8th March 1939, that is, "the office will calculate the amount of court-fee payable by the plaintiff and no decree will be prepared till the same is paid." It was argued that something more was necessary to be done by the Court in order to pass the final decree. But it is not possible to accept this argument.

"Decree" as defined in Section 2 (2), Civil P. C., means "the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final."

The explanation states :

A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such an adjudication completely disposes of the suit. It may be partly preliminary and partly final."

( 5. ) The matter in controversy between the parties was the amount of mesne profits. That was finally determined by the order dated 8th March 1939. The amount being determined the question of court-fee was a matter of mere calculation with reference to the provisions of the Court-fees Act. No further adjudication by the Court was necessary in order to determine the amount of the court-fee. It is true that the Subordinate Judge directed that "no decree shall be prepared unless deficit court-fee were paid." But the Subordinate Judge only meant that the formal drawing up of the decree should be postponed until the court-fee was paid. Nothing more remained to be decided by the Court. The moment the plaintiff paid the deficit court-fee in accordance with this order the decree would have been automatically drawn up. The order of the Subordinate Judge dated 8th March 1939 constitutes, in my opinion, the "final decree;" and the appellant is not warranted in asking the Subordinate Judge to prepare a fresh final decree on the date he paid the amount of court-fee.

( 6. ) It was objected for the appellant that the Subordinate Judge did not formally embody his order of 8th March 1939 in the form of a decree. But the objection is of no avail for on principle it is clear that if a decision really determines the rights of the parties fully and finally it is in the eye of law a decree even though the Court giving the decision has not formally embodied its result in the form of a decree.

(

7. ) This opinion is supported by a catena of authorities. In Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh, 27 I. A. 209 : (23 ALL. 162 P.C.) a decree in ejectment dated 12th November 1887, declared the plaintiff entitled to future mesne profits, and was eventually affirmed by the Queen in Council on 11th May 1895. The plaintiff obtained possession on 30th November 1895. On 16th March 1895, he petitioned the District Judge alleging that mesne profits were due from the date of the suit till recovery of possession. The defendant objected that he was not entitled to any further mesne profits under this decree. After bearing the parties the District Judge ordered that the plaintiff was entitled only to mesne profits for three years from 12th November 188

7. The Judicial Committee held that the order of the District Judge was in the nature of a final decree as defined in Section 2, Civil P. C. and was appealable. At p. 214 Lord Hobhouse states:

"It appears to their Lordships that the plain meaning of Section 2 is to make this order a decree appealable under Section 540. Mr. Ross has not shown any reason why the words of the Code should not be construed in their plain and obvious sense. On the contrary the obvious sense is that which best accords with ordinary convenience and ordinary rules of practice."

( 8. ) In Khub Lal Singh v. Raghubans Narayan Singh, 7 Pat. 491 : (A.I.R. (15) 1928 Pat. 665) a Bench of this Court following the decision of the Judicial Committee held that as order determining the period within which compensation shall be payable was a decree and an appeal lies therefrom.

( 9. ) In Khatemannessa Bibi v. Upendra Chandra, A.I.R. (15) 1928 Cal. 804 [LQ/CalHC/1928/308] : (115 I. C. 591) there is a decision of the Calcutta High Court to a similar effect.

( 10. ) In Adinarayana Chetti v. Narasimha Chetti, 54 Mad. 337 [LQ/MadHC/1930/208] : (A.I.R. (18) 1931 Mad. 471) [LQ/MadHC/1930/208] , there was a preliminary decree which embodied a scheme by which trustees were appointed for the management of a temple. In the same decree, there was a direction that either the plaintiffs or defendant 1 should apply for the appointment of a commissioner to go into the accounts as between the defendants and the temple, and that the newly elected trustees were to take possession of the temple and its properties only on payment to defendant 1 of whatever sum that might be found due by the commissioner. In pursuance of the decree, a commissioner was appointed who submitted a report upon which the Subordinate Judge gave decision that the trustees were to execute a decree for the amount found due against defendants land 3 on their paying a sum of Rs. 217-7-0 as court-fee. The learned Judges held that the order of the Subordinate Judge was in substance a "decree" as defined by Section 2, Civil P. C. and therefore appealable.

(

11. ) In Surajdeo Narayan Singh v. Musahrao, 1 Pat. L. J. 359 : (A.I.R. (3) 1916 Pat. 235) the decree under execution was a redemption decree. The judgment was pronounced on 27th July 1909, but the decree was not actually signed until 23rd February 1910 because in the meantime a commissioner had been appointed to ascertain the exact amount due under the decree. The application for execution was filed on 29th January 1913, that is to say, within three years of the date of the signing of the decree but beyond three years from the date of the judgment. It was contended that limitation should run from the date on which the decree was actually signed, but this contention was negatived. The High Court held that the judgment of the District Judge dated 27th July 1909 sets forth the exact method of ascertaining the sum to be paid in redemption, that the calculation of the sum and preparation of decree was a matter purely of office routine, that the date of the decree must be the date of the Judgment as provided in the Code of Civil Procedure.

( 12. ) In Hira Lal v. Jamuna Prasad, 5 Pat. L. J. 490 : (A.I.R

. (7) 1920 Pat. 111) the judgment was dated 1st May 1915, but the decree was not signed until 15th May 19

15. The application for execution was filed on 13th May 19

18. It was held that the application was barred by limitation because the date of the decree was the date of the judgment under Order 20, Rule 7, Civil P. C.

(

13. ) In Bhajan Bekary v. Girish Chandra, 19 I. C. 410 : (17 C. W. N. 959) the decree under execution was a decree passed in a suit for accounts. Under that decree the deficit court-fee was required to be paid. The application for execution was filed within three years from the date of payment of the court-fee but beyond three years from the date of the decree. Sir Lawrence-Jenkins C. J. staged :

"Article 182, Limitation Act, by which limitation in this case is governed, provides that the period for the execution of the decree is three years from the date of the decree. The date of the decree is that which is indicated in Section 205, Civil P. C. of 1882 and Order 20, Rule 7 of the present Code. It is provided by the rule that the decree shall bear date the day on which the judgment was pronounced."

Accordingly the application was held to be time-barred.

( 14. ) In Kishori Mohan v. Provash Chandra 72 I. C. 646 : (A.I.R. (11) 1924 Cal. 351) [LQ/CalHC/1922/324] the decree tinder execution was a partition decree. It was passed on 25th March 1914, but as the plaintiff delayed in filing the stamp duty the decree was not actually drawn up until 2nd, January 19

20. The application for execution was filed on 2lst July 19

20. It was contended on behalf of the decree-holder that as the decree could not be drawn up until the necessary stamp duty was paid, limitation should run from the date of the signing of the decree, bat Calcutta High Court held that the date of the decree was 25th March 1914, on which the judgment was pronounced and therefore, limitation should run from that date.

(

15. ) On behalf of the appellant reliance was placed on Babu Ram v. Gopal Sahai, A.I.R. (25) 1938 ALL. 539 [LQ/AllHC/1938/103] : (I. L. R. (1938) ALL, 848) in which a decree was passed on the condition that necessary court-fee was deposited. The decree-holder deposited the court-fee only after three-years of the decree. This was accepted by the Court and then the decree-holder sought to execute the decree. It was objected that the decree was barred but the High Court negatived the argument holding that the decree was incomplete until the payment of the court-fee and until there was a decree capable for execution it could not be said that limitation bad begun to run under Article 182, Limitation Act. But the authority of this case is weak in view of the decisions I have already examined and Mohammad Sadiq Mian v. Mahabir Sao, 21 Pat. 386 ; (A.I.R. (29) 1942 Pat. 410) [LQ/PatHC/1942/30] , which is the decision of a Bench of this Court. In this case a preliminary decree had been passed and a commissioner had been appointed by the Court to ascertain mesne profits. The Commissioner submitted his report which was accepted by Court on 6th January 1936, and the Court passed the following order on that date:

"Let final decree be prepared in terms of the commissioners report. ...... No decree shall be prepared unless deficit court-fees are paid."

On 10th September 1938, the plaintiff applied for assessment of deficit court-fee and for preparation of the final decree and on 26th October the Court ordered the plaintiff to pay the deficit court-fee. On 3rd December the Court ordered "Deficit court-fee stamp filed. Let final decree be drawn up now." On 30th January 1939, the decree was actually drawn up and on 17th January 1940, an application for execution was filed. Upon these facts Rowland and Chatterji JJ. held that the amount of mesne profits having been finally adjudicated by the Court by its order dated 6th January 1938 the date of final adjudication must be taken to be the date of the final decree and therefore the execution was barred by limitation under Article 182. The learned Judges added that for the purposes of computing limitation under Article 182 the date of the judgment should be taken to be the date of the decree as provided by Order 20 Rule 7, Civil P. C.

(

16. ) From this review of the authorities it is manifest that in the present case the order of Mr. N. Bagchi dated 8th March 1939 was the final decree since it was the final adjudication between the parties as regards the quantum of mesne profits. In my opinion the learned Subordinate Judge rightly rejected the prayer of the appellant to prepare afresh a final decree of the date he paid the amount of the requisite court-fee.

( 1

7. ) Upon these grounds I hold that this appeal fails and should be dismissed with costs.

(

18. ) Narayan J.--Though according to the Civil Procedure Code of 1908 an application for the ascertainment of mesne profits is no more a proceeding in execution, but a continuation of the suit itself, the second paragraph of Section 11, Court-fees Act is in terms which indicate that the ascertainment of mesne profits has still to be made in execution of the decree. The question of court-fee therefore raises some difficult points when a final decree in respect of mesne profits is passed in accordance with Sub-rule (2) of Rule 12 of Order 20, Civil P. C. And, in fact, in Subhaga Singh v. Shiba Nath Singh, 1 A. L. J. 350, the view was taken that when no time is fixed by a Court within which additional court-fees have to be paid, the execution of the decree merely remains in abeyance and that when the fees are paid in, execution can be taken oat for the mesne profits . Unfortunately, in this case, the Court after making an order on 21st April 1939 that the court-fee of Rs.. 292/8 should be paid by the plaintiff forgot completely that court-fee had to be realised from the plaintiff, and the plaintiff himself filed the court-fee stamp in March 1945. The proceeding was never closed by the Court and after 21st April 1939 no time was fixed for the payment of the additional fee required. And in a case like this it has sometimes been held that because of the provision of Order 20, Rule 12 (2), Civil P. C., a regular final decree for mesne profits does not come into existence until the court-fee required is paid (See Collector of Etawah v. Brindaban, A.I.R. (18) 1931 ALL. 588 : (136 I. C. 77). In Babu Ram v. Gopal Sahai, A.I.R. (25) 1938 ALL. 539 [LQ/AllHC/1938/103] : (I. L. R. (1938) ALL. 848), which my learned brother regards as a weak authority reference was also made to Section 149. Civil P. C. and their Lordships definitely held after considering Section 11, Court-fees Act, that until the court-fee is paid there is no decree capable of execution. I would therefore suggest that Section 11, Court-fees Act, should be so amended that it may be in absolute conformity with the provisions of Order 20, Rule 12 (2). For the present, the decision in Mahomad Sadiqmian v. Mahalirsao, 21 Pat. 366 ; (A.I.R. (29) 1942 Pat. 410) [LQ/PatHC/1942/30] is binding on us, and according to this decision limitation would run from the date on which the Court ascertained the mesne profits.I therefore agree to the order proposed by my learned brothers.